Standing Committee A

[Mr. Alan Hurst in the Chair]

NHS Reform and Health Care Professions Bill

Schedule 7 - The council for the regulation of health care professionals

Amendment moved [this day]: No. 228, in page 74, line 30, leave out 
'on such conditions (if any)'.—[Mr. Heald.]
 Question again proposed, That the amendment be made.

Alan Hurst: I remind the Committee that with this we are taking the following amendments: No. 229, in page 74, line 32, leave out sub-paragraph (2).
 No. 230, in page 74, line 37, leave out sub-paragraph (4). 
 No. 231, in page 74, line 41, leave out 'and (4)'. 
 No. 232, in page 75, line 1, leave out sub-paragraphs (7), (8) and (9).

John Hutton: I have absolutely no recollection of where we were when we broke up at one o'clock. I think that I was dealing robustly and efficiently with the points raised by Opposition Members.

Simon Burns: Perhaps I can help the Minister. He was being rather rude about the important point of loans.

John Hutton: Ah, yes, it is coming back to me. I was curious that Conservative Members had found the holy grail of loans; something called a non-repayable loan, which was described as the ultimate piece of creative accountancy in terms of the Government's resource and cash allocations. Personally, I have never come across a non-repayable loan, but I wait to be pleasantly surprised.

Simon Burns: I can give the Minister an example involving hundreds of millions of pounds in the 1970s, when the Labour Government wrote off loans given to nationalised industries.

John Hutton: Very good. I am sure that that is absolutely right, but I have a vague memory in the back of my mind that the Opposition began our discussions on the Bill by inviting me not to refer to the previous Conservative Administrations from 1979 to 1997. I have tried hard not ever to refer to that period, but I have failed; I have succumbed and made a reference on occasion. Part of me would like to blank out as much of that period as possible because it was a
 gruesome time for many people in the national health service. However, I am interested in the fact that the hon. Member for West Chelmsford (Mr. Burns) wants to highlight a period way back in the early 1970s while admonishing me for referring to an Administration that left office only four years ago. We will not explore that point.

Oliver Heald: Will the Minister give way?

John Hutton: No.

Oliver Heald: It is not on that point.

John Hutton: Oh, go on then.

Oliver Heald: I am grateful to the Minister; he has been generous on this occasion. We are talking about the money and the conditionality for funding, as well as loans. The estimate of the Bill's financial effects states:
 ''The creation of the Council . . . will have negligible effects on manpower. There will be a small financial cost.'' 
What is the budget for the body?

John Hutton: We have not fixed a final and definitive budget because the council has not come into existence. Nor have there been discussions with the officers of the council. It will obviously cost money, and not the non-repayable kind; once the money is spent, it cannot be spent again. There will come a time when I will be able to give more information about the budget of the UK council. I do not think that it will be hugely expensive, but we need to make specific provision for it in future years.
 This morning we were dealing with the issues of loans and conditionality, and the amendments were of a probing nature. Clearly, the amendments are not serious in terms of their implications for the funding of the council. They would mean that the Secretary of State would not be able to discharge his value-for-money and public-accountability function and that none of the devolved Administrations would be able to support the work of the UK council, even though it is designed to work on a UK basis. That would be nonsense. 
 The question on funding is fair, but the hon. Member for North-East Hertfordshire will have to wait a little longer before I can give him anything more definitive. The important point is that the ''conditions'', referred to in paragraph 13, will not be about smuggling in checks and controls on the independence of the UK council through the back door that we have already removed from the front door through Government amendments to the schedule and clause. We are very clear about the need for the council to operate at arm's length from Government and Ministers. The changes that we have proposed to the Bill will reinforce that independence. 
 The provisions here are necessary, for the reasons that I have given. It is certainly our intention that if any conditions to the powers are imposed by the Secretary of State, it is to be done strictly within the narrow confines of the issues that I have raised today.

Oliver Heald: These are probing amendments, and I fully accept that they are full of technical deficiencies. They were designed to raise the important issue of the independence of the council where money is concerned. Money is very important if a body is to be independent. It must have adequate funding, and be sure that it can fulfil its duties. One duty of this body is to refer cases to court. These are fitness-to-practise cases about which there is a conviction that the final decision taken is either unduly lenient or should not have been made. There may be cost implications if a body refers a case to court and then loses. To be a bold regulator, or to feel independent and able to do its job, a body needs enough funds to meet liability for costs and to investigate cases properly.
 We are worried because we do not know what the budget is. We are told that strings can be attached to the funding, and the Minister says that some will relate to fraud. However, we do not know what they will be. Perhaps fraud is a concern, but I would have thought that such a body—full, no doubt, of the great and good—that is regulating other professional bodies is unlikely to be the site of a great deal of fraud. Perhaps it is sensible to have a few conditions of that sort, but what we really need is an assurance that there will be enough money to allow proper independence without strings attached that will interfere with the council doing its job properly. 
 Despite the Minister promising at the outset of our debates to give us the draft regulations, he has not done so. On funding for the various bodies that are to be set up, we have not had from him the minimal assurance that there will be adequate funding for them to do what they are supposed to do. The Parliamentary Under-Secretary of State for Health, the hon. Member for Salford (Ms Blears), was not even prepared to concede that there would be as much money available for patients forums as there currently is for community health councils. 
 The Minister of State will not give us a clue as to what the small financial cost referred to in the estimate is. If he knows that it is small, he must have a rough idea of how much it is; otherwise he might simply say, ''a financial cost'', or, ''some amount''. Are we talking about £10 million, £5 million, £20 million or £100 million? What is small in this context? I will happily give way to the Minister if he can tell us what we are talking about, money-wise.

John Hutton: I want to correct two inaccuracies that the hon. Gentleman has just repeated. I did not give an assurance that I would produce regulations for the Committee, because those have not been prepared. I made that very clear. I said that if any of them were prepared in time to be shared with the Committee, I would ensure that that happened. The hon. Gentleman is misquoting me.
 On the UK council, I made it very clear in my remarks—perhaps the interval has blurred the hon. Gentleman's memory—that the council would be adequately and properly resourced to discharge its functions. I am not able to give him a detailed budget, but it will certainly be less than £5 million.

Oliver Heald: I am grateful to the Minister for that helpful reply. In a moment, I will find the place in the record of the beginning of our proceedings where he mentioned giving us documents. Perhaps I got the wrong impression, and he was not intending to be as helpful as he has sometimes been, or claims to have been.
 The sum is less than £5 million. Is that enough? How many cases does the Minister estimate would be taken to court each year? What are the other significant elements of cost? If there are negligible manpower effects, does that mean that no one is going to be employed by this body? It seems unlikely, given the contents of schedule 7. Roughly, how many people are to work there? Is the Minister able to give us some sort of picture of what this body will be like? Will it be a body that resides in the premises of the Health Professions Council, in Kennington Park road? Or is it going to be based at Richmond house? Is it just a small room with a couple of people in it, or is a decent office block with 20 or 30 people working in it? Can the Minister flesh out the details of what this body is to be?

John Hutton: I have tried to be helpful to the Committee, but I cannot tell the Committee today precisely how many staff the UK council will employ. Neither can I say, with the greatest respect to the hon. Gentleman, where it is going to be based. No such decisions have been made. Of course those types of decisions need to await the appointment of certain key officers of the UK council, who will be entrusted with the responsibility of administering it. The hon. Gentleman must know perfectly well from his experience as a Minister that these are not questions that I can answer in detail today, and not because I am withholding information from the Committee. Quite honestly and obviously, no Minister would be in a position to provide the answers that he is seeking at this moment.

Oliver Heald: We have obviously taken the matter as far as we can. These amendments are not designed to be put to a Division, and we should return to the subject on report. Obviously, if the Minister is able to write to me over Christmas, setting out any more detail about what is proposed, the size of the body, what assurances could be given that it would have an adequate budget for taking matters to court and issues of that sort, we would be grateful. Equally, we would welcome any assurances that the terms and conditions on which money is given will not be so restricted that the body feels that it does not have genuine independence. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

John Hutton: I beg to move amendment No.207, in page 75, line 34, leave out '14' and insert '15'.

Alan Hurst: With this it will be convenient to take Government amendment No. 208.

John Hutton: Amendment No. 207 quite literally corrects a typographical error. It makes clear that the definition of ''financial year'', given in paragraph 14 of
 the schedule, also applies to paragraph 15. It is quite simply an amendment that alters one numeral on the face of the Bill. I hope that it will not be seen as controversial.

Oliver Heald: It would be helpful if the Minister briefly outlined what amendment No. 208 proposes, as it is obviously related to Northern Ireland. I do not know whether it is a typing error, or something similar.

John Hutton: I apologise to the Committee. I do not seem to have my notes in my file, which is slightly embarrassing, but down to me.
 Amendment No. 208 deals with the Northern Ireland Assembly's powers to request reports from the council, which, under the Bill, the council must comply with. The effect of amendment No. 208 is to specify more exactly than the original Bill the limits to what the council must do in these circumstances. In addition to confining the requests that must be answered to those subjects that come under the Northern Ireland Assembly's jurisdiction, it specifies that the Assembly's request must only be complied with if the subjects relate to Northern Ireland. For example, the regulation of pharmacy is a reserved matter. As it stands under the Bill, the council would be obliged to comply with the request to lay a report before the Northern Ireland Assembly on the regulation of pharmacy generally. This would clearly give the Assembly wider powers than the Scottish Parliament, and I think hat that would be inappropriate. The amendment would confine the scope of a request to report on pharmacy regulation, continuing the example to the regulation of pharmacy in Northern Ireland. That would be a more suitable topic for the Assembly to be asked about.

Simon Burns: What would be the implications for the Bill if, at some point in the future, the Northern Ireland Assembly were, regrettably, to be suspended?

John Hutton: In that event, the functions would revert to the Secretary of State; that is, the Government. I hope that that will not prove to be necessary.

Simon Burns: I understand that if the Assembly is suspended, the Secretary of State and London take over the running of the Province for the period of the suspension. However, would that automatically mean that the powers in the Bill went to London, or would this part of the Bill be rendered inoperable?

John Hutton: My understanding is that powers would revert automatically to the Secretary of State. However, this is obviously a fine constitutional issue, and I do not want to mislead the Committee. I shall write to the hon. Gentleman with the information that he requests.
 Amendment agreed to. 
 Amendment made: No. 208, in page 76, line 7, leave out from 'matters' to end of line 9 and insert
'concerning Northern Ireland (''transferred matters'' having the meaning given by section 4(1) of the Northern Ireland Act 1998 (c.47)).'.—[Mr. Hutton.]

Oliver Heald: On a point of order, Mr. Hurst. We were told earlier that only a very narrow debate, if any, would be allowed on schedule 7 stand part. In the light of the previous discussion, can I ask the Minister a question about paragraph 18?

Alan Hurst: I will allow the hon. Gentleman to do that in the context of a limited stand part debate.
 Question proposed, That this schedule, as amended, be the Seventh schedule to the Bill.

Oliver Heald: I have just noticed that paragraph 18, which deals with meetings of the council in Northern Ireland, implies that public access to those meetings will be restricted under sections 23 to 27 of the Local Government Act (Northern Ireland) 1972. Is that so? Equally, what will be the position in the rest of the United Kingdom? Will meetings of the council normally be open to the public, or is it envisaged that they will take place in private?

John Hutton: The hon. Gentleman is right about paragraph 18. On whether meetings of the council will be open to the public, the answer must be yes. The council will have to consider that issue when it undertakes its programme of work.
 Schedule 7, as amended, agreed to.

Clause 24 - Powers and duties of the Council: general

Amendment made: No. 199, in page 29, line 19, leave out '(5)' and insert '(5A)'.—[Mr. Hutton.]

Simon Burns: On a point of order, Mr. Hurst. I thought I heard you say that we had approved amendment No. 119.

Alan Hurst: No, it was amendment No. 199.

John Hutton: I beg to move amendment No. 200, in page 29, line 40, leave out from 'ended' to end of line 42.
 This amendment, which I was trying to speak to earlier, deals with an inconsistency in the drafting of this clause and of clause 27(1). Subsections 24(3) and (4) are designed to do three things: to prevent the council from intervening in the cases of individuals that a regulatory body is considering; to allow the council to investigate a complaint about maladministration, which is dealt with further in clause 26; and to allow the council to exercise its public interest appeals powers as described in clause 27, but only after the regulatory body's proceedings have ended. As drafted, the words in brackets in clause 24(4), which the amendment will delete, suggest that, under clause 27, the council could take action, even in cases where it was decided not to undertake regulatory body proceedings. It was never intended that clause 27 should apply in such cases, and the amendment will remove any possible inconsistency between the two clauses.
 It might also help if I make clear the definition of ''proceedings'' in clause 24(10), which states that 
'''proceedings', in relation to a regulatory body, or one of its committees or officers, includes a process of decision-making by which a decision could be made affecting the registration of the individual in question.''

Oliver Heald: If a regulatory body refuses to investigate a complaint, can the council do nothing?

John Hutton: The issue is dealt with in other clauses in terms of the meaning of final decisions, and the council's ability to exercise its right of appeal to the High Court in cases where an unduly lenient decision has been taken. The hon. Gentleman's point is an interesting one and I understand it entirely. In an effort to avoid deciding on a difficult case, proceedings might not be instigated at all. That could raise different subsidiary issues about the work of that regulatory body, which the council itself might want to initiate. However, we are discussing the public interest right of appeal in clause 27 and how it is supposed to be triggered. It is based on an unduly lenient decision of the regulatory body itself. The council might have to consider an alternative route for dealing with such issues, rather than using clause 27 to exercise its right of appeal against unduly lenient decisions.
 The hon. Gentleman has raised a fair point about the regulatory body's deciding not to initiate a process. In that event, the matter would have to be dealt with in the first instance by the regulatory body itself. Any suggestion of a deliberate attempt to circumvent natural justice or proper public safety and scrutiny would be a matter of serious concern that the council would want to raise with the regulatory body. I ask the hon. Gentleman to give me time to reflect. In clearing up the inconsistency between clauses 24 and 27, it is certainly not the Government's intention to create a further loophole that would subvert the provision of better public confidence in professionally led self-regulation.

Oliver Heald: I simply wondered whether the council could undertake a judicial review of the regulatory body's decision under mandamus, and thereby require it to take a decision. Alternatively, is there some method by which it might be required to undertake an investigation? I am clearly happy for the Minister to give the matter further thought—I simply wondered whether a common law route might be available.

John Hutton: It might well be, but the problem might also be solved by reference to the Secretary of State's powers in clause 26 to construct a regulation dealing with maladministration complaints. It is important to place on record the fact that it would be difficult to imagine a regulatory body discharging its functions properly in the sort of example that he gave. If there were clear evidence of such a decision by a regulatory body, it would certainly give rise to serious concern in the House and among the public at large. I am not aware of any complaints about regulatory bodies making such decisions, but I am aware that concern has been expressed by the public and Members of the
 House about decisions of regulatory bodies' fitness to practise committees, and so on. The hon. Member for Westbury (Dr. Murrison) will be aware of some of those. That complaint is more typical and common than complaints about decisions not to initiate proceedings.
 We have tried to draw a distinction between decision-making processes involving the General Medical Council, the General Dental Council and any other body, because there is insufficient evidence to merit a proper fitness-to-practise decision-making process being initiated, and the decisions of the fitness to practise committee. The public interest is served in the case that we have tried to specify in the Bill when an unduly lenient decision raises serious issues of public concern. That is where we envisage council intervention. We certainly do not intend the UK council to have competence to examine every decision by a regulatory body not to initiate proceedings. As a matter of common sense and judgment, that must properly be left to the decision-making processes of the regulatory bodies. 
 Amendment agreed to. 
 Amendment made: No. 201, in page 30, line 7, at end insert— 
 '(5A) The Council may not do anything in relation to the functions of the Pharmaceutical Society of Northern Ireland (or its Council, or an officer or committee of the Society) unless those functions are— 
 (a) conferred on the Society (or its Council, or an officer or committee of the Society) by or by virtue of any provision of the Pharmacy (Northern Ireland) Order 1976 (S.I. 1976/1213 (N.I. 22)), other than Article 3(3)(e) (the benevolent functions), 
 (b) conferred as mentioned in paragraph (a) by, or by virtue of, an Order in Council under section 60 of the 1999 Act or an order under section 56 of the Health and Personal Social Services Act (Northern Ireland) 2001 (c. 3) (which makes provision corresponding to section 60 of the 1999 Act), or 
 (c) otherwise conferred as mentioned in paragraph (a) and relate to the regulation of the profession regulated by the Pharmacy (Northern Ireland) Order 1976.'.

Oliver Heald: I beg to move amendment No. 233, in page 30, line 12, after 'must', insert
'consult with the profession and'.

Alan Hurst: With this it will be convenient to take the following amendments: No. 234, in page 30, leave out lines 21 to 23.
 No. 235, in page 30, in line 33, leave out from second 'profession' to 'which' in line 34. 
 No. 236, in page 30, line 34, leave out '(wholly or partly)'.

Oliver Heald: Under clause 24(7), if the Secretary of State asks for advice--this applies also to other authorities that might seek advice--about the health care profession, the council must give such advice. Amendment No. 233 would require the council to consult the profession when that request is made. It also raises the question of the Secretary of State's purpose in seeking advice and what the Minister has in mind. Does the Minister agree that if the Secretary of State, the National Assembly for Wales, Scottish Ministers, and the Ministry of Health, Social Services
 and Public Safety in Northern Ireland asked for advice, consultation would almost inevitably be necessary? The primary purpose of the amendment is to find out what the Minister has in mind for the sort of advice that might be requested.
 Section 60 of the Health Act 1999 gives a regulation-making power to the Secretary of State and clause 24(8) adds to that list. Amendment No. 234 would delete a provision in paragraph (e) that allows the Secretary of State to modify 
''the range of functions of that body in relation to which the Council performs its functions.'' 
This is a probing amendment to test whether the provision is necessary and the reasons for it. I invite the Minister to explain exactly what he has in mind in subsection (8)(e). 
 Amendments Nos. 235 and 236 would delete the words in brackets in subsection (11), which states: 
 ''In this section, 'health care profession' means a profession (whether or not regulated by or by virtue of any enactment) which is concerned (wholly or partly) with the physical or mental health of individuals.'' 
Why should it not read, ''In this section, 'health care profession' means a profession which is concerned with the physical or mental health of individuals''? I am sure that the Minister will tell me that there are extremely good reasons for that, but so often in the drafting of clauses there is a great deal of surplusage. I should be grateful if he would explain why that drafting is needed.

Peter Atkinson: Clause 24(8)(e) states:
''modifying, as respects any such regulatory body, the range of functions of that body in relation to which the Council performs its functions.'' 
Will the Minister explain that in more detail and give us an example of the sort of change that might lead to the council wanting to modify its existing arrangements?

John Hutton: Amendment No. 233 requires that before the council complies with a ministerial request under clause 24(6) to give
''advice on any matter connected with a profession'', 
it must consult with that profession. I have several problems with the amendment, although I do not dispute the need for proper consultation. The obvious problem is that it does not describe the consultation process: does it mean a regulatory body or the individual members of a profession? 
 A practical problem with the amendment is that we envisage the UK council consulting regularly with other regulatory bodies, and, in some cases, the professional membership of those bodies, through consultation proposals, documents, meetings and conferences, which would be a legitimate way for it to go about its business. There is an obvious difficulty in placing on the face of the Bill a requirement to consult with the profession. Ministers might request information from the council and want it at necessarily short notice. They would be aware how these processes work and might require advice quickly about 
 professional regulation and self-regulation. If the council had to consult before it could give that advice it would not be an ideal situation for either Ministers or the council, which is something that the hon. Member for North-East Hertfordshire, who is a man of goodwill, will understand. 
 Amendment No. 234 removes one of the three changes that we proposed the Bill should make to section 60 of the Health Act 1999. Amendments Nos. 235 and 236 seek to change the definition of ''health care profession'' in clause 24. The hon. Member for Hexham (Mr. Atkinson) asked me about that definition, which is not new and relates to section 61(b) of the 1999 Act. I remember sitting through many hours of discussion and debate about the meaning of that term. He did not have that pleasure—perhaps I should send him copies of the bound volumes of Hansard so that he can flick through them at his leisure. 
 I am not disputing that amendments Nos. 235 and 236 have the ring of common sense. However, if we were to amend clause 24 in the way in which the hon. Member for North-East Hertfordshire has suggested, the clause would not cover professions such as psychology that are only partially concerned with health. Furthermore, the clause would not cover professions such as operating department practitioners, perfusionists or physiological measurement technicians, none of which are currently regulated. Depending on the advice that Ministers receive from the Health Professions Council, we want a situation in which we can extend regulation into those areas. In understand that his amendments are designed to probe the rationale behind these definitions and the reasons why they are drafted in this way. However, the definitions are deliberately drafted to allow for the possibility of an expanded regime of self-regulation in those areas.

Andrew Murrison: I take issue with the Minister, and professionals such as psychologists would also take issue with him, in excluding their work from the definition of health. The World Health Organisation has offered a useful definition of health, and I am sure that he has heard it many times before. It would certainly include professions such as psychology, along with operating theatre technicians and a raft of people who work within the health service. The wording of the clause in relation to physical and mental health seems verbose. Nothing would be lost, indeed a great deal would be gained in terms of clarity, by deleting ''physical and mental'' because ''health'' is all-encompassing. The wording is unnecessarily complex, and most within health care would know what he meant were he to stick to ''health''.

John Hutton: This is one of those occasions on which I must disagree with the hon. Gentleman. The amendments create further doubt as to what is and what is not regarded as a health care profession for these purposes. Including ''wholly or partly'' is designed to ensure that in areas where there is argument and potential doubt, we can ensure that we
 are not inhibited from expanding the range of professional self-regulation. If we were to take the words out it would narrow the definition rather than expand it, and we should have an expansive definition rather than a narrow one.

Evan Harris: I agree with the Minister's comments, as I did in 1999, on the need to expand professional self-regulation where appropriate. The danger of taking out the provision that there must be a physical or mental health component to the care given might be taken as a signal that we are opening the door to professional self-regulation to people who deal, as they would see it, purely with the spiritual side of health. As a minimum, we must further debate the primary legislation before giving a signal that we are going down that path.

John Hutton: To be fair to the hon. Member for North-East Hertfordshire, he is not proposing the deletion of ''physical or mental health'' from the definition. He wants to delete:
''whether or not regulated by or by virtue of any enactment''. 
Amendment No. 235 would confine the work of the council to bodies that are currently regulated, and not allow it to consider those that might be regulated in future. That would be daft because it would limit the efficacy of the council. 
 Amendment No. 236 would omit the words ''wholly or partly'', which are designed, as the hon. Member for Oxford, West and Abingdon (Dr. Harris) said, to give us the greatest possible scope. We want to avoid rather than encourage arguments about whether professions are covered by the Bill. 
 Amendment No. 234 raises some different issues. The provision the amendment proposes to delete would give us the power in a future section 60 order to adjust the range of functions that fall within the remit of the council to those bodies that are both the regulatory and professional body for their profession. Currently the only such bodies are the Royal Pharmaceutical Society and the Pharmaceutical Society of Northern Ireland. Because of their unusual status, the council only bites on their regulatory functions, which is absolutely correct. This is a piece of flexibility that it is logical to include now, but we have no plans to use it. 
 The provisions that we are proposing in relation to section 60 are designed to preserve flexibility. The Bill currently gives us the power to alter the range of functions that fall within the remit of the council of those bodies that are both regulatory and professional. Because of that status, the council should have a competence and jurisdiction in relation to its regulatory functions. That is what the clause seeks to do, and I hope that that clarifies the position for the hon. Member for Hexham.

Oliver Heald: I feel that we have had a ''Titanic'' moment—there was more beneath the surface than I had realised. From what the Minister is saying, some groups or bodies that clause 23(3) proposes could
 become part of the scheme in due course: bodies apart from the General Medical Council and the others on the list.
 The Minister mentioned psychology and physiological measurement, but if there are several possible applicant groups that will be joining in the regulation, what will be the route for them to do so? Will the logical way be through the Health Professions Council? Can the Minister give us an idea of which bodies might be included? Are there groups requesting to be part of the Health Professions Council, who are they, and is a process underway to join them up, over a period of time, which I had not fully appreciated?

John Hutton: There are, and I tried to say which groups they were in an earlier debate. Psychologists have been pushing for a scheme of professional self-regulation for some time, and have been in discussion with Ministers about that. I remember meeting them about 18 months ago to discuss it. It is generally well known that operating department practitioners and perfusionists, examples that I have given previously, are also arguing for professional self-regulation.
 We are trying to ensure that the UK council has the flexibility to deal with those organisations as and when they might become part, for example, of regulation through the Health Professions Council. It is through advice from the HPC that Ministers will come to decisions about the need for future regulation in those areas.

Oliver Heald: That will happen only through the HPC, and it is not thought that any other groups out there would be likely to join. I cannot think of any, but there might be another general council of some sort that I have missed. That was helpful, but can the Minister drop me a line listing the main groups that he is currently aware of that might be future members of the HPC? I think that that might be helpful on Report.
 I am still not quite clear what sort of advice the various bodies in clause 24(6) might seek from the council. It states: 
''advice on any matter connected with a profession appearing to him or them to be a health care profession'', 
but some thought must have been given to what advice might be sought, and in what circumstances. Can the Minister give us some idea of what he has in mind? He mentioned short notice requests being necessary and those interfering with consultation, but I cannot think what circumstances this relates to. Might it be when a crisis occurs at a particular hospital, involving a particular profession, and the Minister suddenly wants urgent advice about regulation?

John Hutton: The hon. Gentleman's example is a situation that might occur. Others might come up from time to time.
 I am not disputing with the hon. Gentleman the need for consultation with a profession. The UK council should be the body to undertake that on occasion and it is clear from its functions laid out in the Bill that it will have the opportunity to do that. My only dispute with him is that to require it, in the Bill, to consult before giving any advice to Ministers would be to include an unnecessary restriction. I do not think 
 that that would be a good idea because there must be efficient conduct of business between the council and Ministers.

Oliver Heald: I am grateful to the Minister for those replies. I hope that he might be able to write to me about the various applicant groups, and, on that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 24, as amended, ordered to stand part of the Bill.

Clause 25 - Regulatory bodies and the Council

Oliver Heald: I beg to move amendment No. 238, in page 30, line 37, after ''functions'', insert—
''take all reasonable steps to''.

Alan Hurst: With this it will be convenient to take the following amendments: No. 186, in page 30, line 39, leave out subsection (2) and insert—
 ''(2) If, after consulting the regulatory body concerned, the Council concludes that—
(a) it is necessary for the protection of members of the public for a regulatory body to make or amend a rule (under any power the body has to do so); and
(b) the regulatory body has not made or amended the rule and will not do so
the Council may if it thinks fit lay a special report before each House of Parliament.''.
 No. 237, in page 30, line 43, leave out subsections (3), (4), (5), (6) and (7). 
 Government amendments Nos. 247 and 248.

Oliver Heald: The amendments are important. The first in the group, amendment No. 238, is not, perhaps, the most important, although it is quite important. Amendment No. 186 is the most significant.
 Amendment No. 238 would require a body to 
''take all reasonable steps to'' 
co-operate with the council. Clause 25(1) states: 
 ''Each regulatory body must in the exercise of its functions co-operate with the Council.'' 
My understanding is that ''co-operate'' there is intended to be within the bracket of reasonableness. Can the Minister confirm that reasonableness is implied in the duty to co-operate and that it is not an absolute duty, but one that is limited in that way? I imagine that that is how a court would look at it. 
 Amendment No. 186 is the main amendment, and amendment No. 237 is consequential upon it. Amendment No. 186 is proposed on the basis of concerns raised by the statutory regulators of the eight relevant bodies. Others also support it. The presidents of the various regulatory and shadow regulatory bodies make it clear that they strongly support the conclusions of the Bristol royal infirmary inquiry. They believe that the principle of independence from Government is seriously undermined by the proposal in clause 25(2) that a new council, a non-ministerial Government Department, would be able to direct 
 regulators to change their statutory rules on important matters even if regulators believed it to be against the public interest. That concern is even greater because that imbalance, as I would put it, between the lay membership and membership from the regulatory bodies is also proposed. 
 The background to amendment No. 186 is the concern that the various statutory regulators have set out. Clause 25 gives the Council for the Regulation of Health Care Professionals wide powers to direct each statutory regulator on how to do its job. It dilutes the principle that each regulatory body should be directly accountable to Parliament. 
 Although the words ''recommend'' and ''encourage'' are used quite widely, the power of direction will apply to all matters relating to rules that require Privy Council approval. In effect, that means almost every significant policy area. It is not framed as a reserve power, which the Minister called it earlier on in passing, nor limited in any way to exceptional circumstances. If it were, we would expect that to be defined in the Bill. Even where a regulator believes that to make a requested change will be against the public interest, it will be required to conform with the CRHP directions. The various statutory regulators believe that only Parliament should be able to make that requirement. 
 Amendment No. 186 has been tabled with the support of the statutory regulators. It is also supported by the BMA, which has said that it is opposed to the substantial powers in the Bill that would enable the council to direct a regulatory body to change its rules on many important policy decisions, even when that body believes that it is not in patients' best interests. The BMA has worked successfully with the GMC to modernise and streamline its structures, and supports this amendment. 
 We will come on to the Government amendments later, but Government amendment No. 247 states that the Secretary of State ''shall'', not ''may'', make provision in regulations as to the procedure for giving directions to a regulatory body. 
 Amendment No. 248 states that the regulations must require the council to consult a professional body before giving it directions. That is all well and good, but it is the power of direction itself that undermines the independence of the council. The amendment is drafted in line with the way in which the health ombudsman works; it requires the laying before Parliament of a report, which can then be acted upon. That is a very solid way of dealing with matters, which has worked in other contexts.

Evan Harris: I have added my name to amendment No. 187. I do not have a huge amount to add to the reasonable points argued by the hon. Member for North-East Hertfordshire. In discussions on earlier clauses I told the Minister that this was a crucial area, not only because of the issue that we are debating—the power of the council to direct regulatory bodies, which, as I shall argue, runs contrary to the theme of this part of the Bill—but because of the Government's resistance so far of the principle that there should be parity between the
 council members appointed by the Government and those appointed by the regulatory bodies, or a majority for the latter.
 The use of the terms ''lay'' and ''professional'' is unhelpful in this sense, because I see no reason why the regulatory bodies should not appoint a lay member to the council. The purpose is to represent the council, not the profession. Nevertheless, I believe that the idea of professional self-regulation is understood to mean a majority in the sense of people appointed by the regulatory bodies. The Government's current resistance to such a majority raises the stakes in the debate. 
 Exactly as the hon. Member for North-East Hertfordshire says, the power does appear to be a strong power, and does not appear, at least on the face of the Bill, to be a reserve power. I know that the Minister can hardly wait to get to his feet to explain that it will be a reserve power. Before he does so, I should like to point out to him the curious position of the word ''direct'' in the Bill. Clause 23(2)(a) talks about the promotion of the interests of the patients—not seeking to ensure those interests, but simply the promotion of best practice. Clause 23(2)(c) says that one of the council's functions is to encourage regulatory bodies to conform to principles relating to good professional self-regulation, and clause 23(2)(d) says that another is to ''promote co-operation''. The choice of those words, which has my support, is based on the feelings behind those words. Similarly, clause 24(2)(c) says that the council may 
''recommend to a regulatory body changes to the way in which it performs any of its functions.'' 
There are other areas where the terms are not as harsh as ''to direct'', and clearly the statement that the council 
''may direct a regulatory body to make rules'', 
as in clause 25(2), significantly changes what that means. As has been said, the rules—rules that must be approved by the Privy Council—would cover almost every area of a regulatory council's work, at least according to briefings that I have seen from some regulatory bodies. 
 It seems to me that the Government's amendments seek to reduce the sense of strength of that clause by changing the word ''may'' to ''shall'' when it comes to the Secretary of State's making provision in regulations. That is a curious change of position as the Minister has previously resisted, for reasons that he has given in each individual case, the changing of ''mays'' to ''shalls'' where they are, arguably, protective of the over-regulation of the profession. 
 The second Government amendment is also intended to be reassuring. However, I will need some persuasion before I withdraw my support for amendment No. 186.

Oliver Heald: Does the hon. Gentleman agree that the health service commissioner's power to make special reports to both Houses of Parliament, on which the amendment is based, has worked well and is seen as almost the most powerful tool in bringing matters to
 a head? Such a provision has the advantage of leaving Parliament's accountability intact, while still being a pretty strong measure.

Evan Harris: I strongly agree. If a clash between one of the regulatory bodies performing its functions as it saw fit and the council's function of protecting the public led to a direction being issued under the Bill, that is something that Parliament should know about. The amendment would put the onus on the Government to intervene through secondary legislation, or whatever is required, to bring about a resolution.
 It is in the nature of such bodies that individual cases are discussed, if not behind closed doors, behind doors that are some way from the House, and I would be alarmed if I thought that arm-twisting, even of a statutory nature, was being applied to a regulatory body without the House being aware of it. This is an important issue for the public. The Government may pray that in aid of their desire to ensure that there are adequate powers of direction. On the contrary, however, it strengthens the case made by the movers of the amendment that Parliament should be made aware of any stand-off between a regulatory body and the council—especially given the Government's view that council members appointed by the regulatory bodies should not be in the majority.

Simon Burns: I do not intend to detain the Committee for long. I support the amendments and agree with the comments of my hon. Friend the Member for North-East Hertfordshire and the hon. Member for Oxford, West and Abingdon.
 Clause 23, which lays out the functions of the council, is couched in eminently reasonable, non-confrontational terms, using words such as ''encourage''. Clause 25 uses rather harsh language to give the council teeth. That may not be in the best interests of the working of the system once the Bill is enacted. 
 Before the Minister rejects the amendments out of hand, I urge him to give genuine consideration to amendment No. 186 in particular. Clause 25 takes a sledgehammer to crack a nut. I am not convinced that such harsh language is necessary, and the Government should be prepared to consider toning it down. We do not want the system to fail to achieve the Government's aims, but we want it to achieve them in a more conciliatory and reasonable way.

Andrew Murrison: I support amendments Nos. 186 and 238. The question is not simply one of language, although language is important. We want to encourage a constructive dialogue between the regulatory bodies and the council. Of course, the amendments are very much linked. In the event of a regulatory body's failing to take all reasonable steps, the commission would have recourse to Parliament under amendment No. 238, and I welcome that fact.
 In the light of the Kennedy report and other such developments, we need to recognise the good work of the regulatory bodies in putting their own house in order. I agree with my hon. Friend that clause 25 looks a little harsh in the light of those improvements.

John Hutton: Two issues arise from the amendments. The first, which arises from amendment No. 238, concerns the way in which we envisage that the duty to co-operate will apply. The hon. Member for North-East Hertfordshire is right: in deciding whether a regulatory body has complied with its duty to co-operate, a court will have to take into account the question of reasonableness. In that regard, there is not a great deal between us. He is right to say that that principle is implied in the Bill, and that is certainly how we expect the duty to apply.
 The second issue relates to the heart of the matter—the council's relationship with the regulatory bodies, and the nature and purpose of its existence. Why is it there, what is it designed to achieve and what change will it ultimately be able to bring about? I have listened carefully to the arguments of Opposition Members and of the regulatory bodies, and I know that members of the Committee received copies of correspondence from Professor Wilson, who has acted as advocate for the regulatory bodies in the past few days. He and I have discussed the issues in some detail.

Evan Harris: Is the Minister saying that all members of the Committee have received a copy of that correspondence? I have not seen a copy of it.

John Hutton: My understanding was that all members of the Committee had received a copy. I will ensure that the correspondence is available to the hon. Gentleman and to others, because it is very important.
 The issue is a fundamental, full-on question about the role of the council. I agree entirely with many of the points that Conservative Members made about the way in which this part of the Bill should work, and the distance between us is probably not as great as has been suggested this afternoon. In particular, I was struck by the comments of the hon. Member for West Chelmsford (Mr. Burns) about the need to conciliate and to avoid harshness. I agree that there is such a need, but his reading of the clause is not mine. I do not consider it harsh; nor has it been worded in anything other than a spirit of conciliation, particularly in light of amendments Nos. 247 and 248, which we shall discuss in a moment. A process of conciliation is precisely what we envisage will apply in such cases. I also agree with the hon. Member for Westbury about the need to encourage constructive dialogue. That will be reflected in the way in which the council goes about its business. 
 However, I disagree with Opposition Members' suggestion that clause 25(2), which is at the heart of the matter, is open-ended. No one who reads it could possibly construe it as having been designed to be open-ended. It makes it clear that, before taking action, the council must be satisfied 
''that it would be desirable to do so for the protection of members of the public''. 
That is a clear steer that the provision in no way constitutes a right to roam across the regulatory landscape at will, interfering in the rule-making freedoms of regulatory bodies. It is a specifically focused power, which we have drafted as best we can, 
 for dealing with what can best be described as extreme cases where a majority of the council believe that action must be taken to protect members of the public. That is an important caveat. If there were no such qualification, I would agree with the hon. Member for Westbury that the provision constituted a right to roam across the rules of regulatory bodies, but there is such a qualification. We would never include a provision that was designed to give the council such far-reaching powers. 
 In setting up the council, it is very important that we give it only the powers that it needs to do the job that we think needs to be done. That is what both clause 25(2) and clause 27(2) seek to do in relation to public interest in the right of appeal to the High Court in cases of unduly lenient decisions by a regulatory body. Those two powers are specific and are designed to operate in limited circumstances. During an earlier debate, I was asked in how many cases we envisaged such powers being exercised. I should be disappointed if there were any. We look to the regulatory bodies to safeguard the public properly, but there have been cases—I shall refer to one in due course—where there was substantial doubt as to whether that happened. In the limited number of cases where a serious issue affects public safety, the council is undoubtedly the right body to take a step forward by ensuring that the rules are tightened. 
 I understand perfectly the concerns expressed by the regulatory bodies, and we have tried to meet them half way through the amendments that we tabled today. We cannot meet them 100 per cent., however, because we believe that the council should have this last-ditch, last resort power. In that regard, there is a clear difference between Government and Opposition members of the Committee. If we accept the amendment tabled by the hon. Member for North-East Hertfordshire, there is a danger that we will create a toothless tiger, and there is no point in wasting the time of this place by doing that.

John Baron: Does the Minister accept the sweeping generalisation that only Parliament should be able to direct regulators on fundamental matters? We seem to be creating a slight conflict of interest. It is accepted that we must give the council sufficient powers to carry out its functions, but there is a fine line to be drawn. At the end of the day, this is a fundamental issue and Parliament should be the only body to direct regulators in the performance of their functions.

John Hutton: That is a very interesting argument, but it is not the present position. At the moment, Parliament cannot act in that way and the matter is essentially one for the Privy Council, so the hon. Gentleman's proposal would require a substantial change in current arrangements for approving rules. However, there is certainly an argument to be made about the role of Parliament, and I shall return to it in a moment, as I am pretty much on the hon. Gentleman's side. That is why the Bill has made it clear that the council will report to Parliament.
 In moving his amendment, the hon. Member for North-East Hertfordshire expressed concern about the role of Parliament where the council and the regulatory body are in conflict over rules and the council feels the need to exercise its powers. I hope that that situation never arises and it will be a huge disappointment if it ever does, but there would be every opportunity for Parliament to express its opinion. It could do so in a number of ways, including through the Select Committee on Health. Of course, the council itself will report to Parliament. If such a terrible situation arose, I would be gobsmacked if it were not the subject of detailed commentary in the council's report to both Houses of Parliament. 
 It is perfectly reasonable for us to have this argument, but the alternative prescription is not adequate. It would leave the status of the report in no man's land—in a hinterland in which there is no absolute clarity about the role of Parliament and what would happen in such cases. 
 There is another important point that we must not lose sight of. Even if the power under clause 25(2) were exercised and the council recommended a change in the rules with which the regulatory body must comply, such a change would have to be approved by the Privy Council. The council itself will not write the rules of the regulatory body. The regulatory body must give effect to the directions that it receives and the Privy Council must ultimately decide whether to approve rule changes. There has been some misunderstanding of that.

Oliver Heald: To what extent does the Privy Council have discretion? If the recommendation is made, surely that is the end of it.

John Hutton: No, I think not. The Privy Council has absolute discretion to accept, or not accept, rule changes. It is not as cut and dried as some of the hon. Gentleman's arguments have suggested.

Oliver Heald: Will the Minister give way again?

John Hutton: I will in a second, but it is important to confirm that the UK council will not be writing the rules of the regulatory bodies.

Oliver Heald: Can the Minister give an example of a similar situation where the Privy Council has overturned a recommendation?

John Hutton: There has never been a scenario such as that which the hon. Gentleman is countenancing. He is not a member of the Privy Council so he has not had the experience of seeing what happens. What happens is truly weird—I will not go into that because I would be out of order.
 The Privy Council acts, and reaches its decisions, on the advice of Ministers. It is possible that a dispute could be resolved in that way. There may be arguments and different views, but the Privy Council acts on the advice of Ministers so it would be a mistake to assume that everything will be decided in accordance with the work that the hon. Gentleman described—it may not 
 be so decided. We are now talking in the language of hypotheticals. However, the constitutional position is clear: the Privy Council will decide whether to approve the recommendation of a rule change that arrives from a regulatory body, even when it is acting under a direction received from the UK council. 
 That may have been a rather tortuous constitutional seminar, but it describes the position. It is a mistake to construe 25(2) as giving a direct power to the council to change the rules of a regulatory body. We have come to the view that the council should have the statutory power to require a change because we want the council to be an effective body, not an overbearing one. Professor Kennedy had no doubt that the council should have powers to ensure that it was able to carry out its functions effectively. He says: 
 ''We believe that the Council should have statutory powers to require the various bodies to act in the interests of patients and conform to principles of good regulation.'' 
I well understand the argument of the hon. Member for Oxford, West and Abingdon and others that simply because Professor Kennedy has expressed a view does not mean that we must accept it—of course we should not. However, he has given us a convincing argument. I say that not to give the UK council the powers of the Nazi stormtroopers, but to reserve a baseline power so that public interest is served. The amendment tabled by the hon. Member for North-East Hertfordshire would not give us the opportunity to ensure that change was effected. 
 In the Government amendments, I have tried to make it clear that the Secretary of State will be able to make regulations about the procedure to be followed when the council directs the regulatory body to make a rule change. Government amendment No. 248 sets out what the regulations must cover and specifies that the process must include a period of consultation. According to any principle of fair play and even-handedness, it would be inconceivable not to have consultation preceding a council's final decision on whether it wanted to exercise its powers. 
 The hon. Member for Oxford, West and Abingdon made the good debating point that the amendment was the only Government amendment that he could remember that converted the word ''may'' to ''shall''; that is usually the prerogative of those in opposition, but I am happy to establish a precedent for regulatory-making powers. We believe that it is important to send a clear and obvious signal to the regulatory bodies, and the wider public, that we demand that the council acts in a fair and even-handed way. The amendment will ensure that that intention, which has always underpinned our thinking on the issue, is included in the Bill. We have decided to table it as a result of conversation with the regulatory bodies. I know that they would have liked us to go further, but we were unable to do so because it is important that the council has the reserve power as a last resort. 
 I may not have persuaded Opposition Members that it is necessary for the council to have the power, but I hope, at least, that I have reassured them that we considered the arguments carefully. We are amending the Bill to try to clarify the procedures that we expect to be followed and we have made it abundantly 
 clear--I have tried hard to do so this afternoon--that the power in clause 25(2) is a reserve power to be used only when there is no alternative.

Evan Harris: I have plenty to say in response to the Minister. However, he said that he might mention a case or cite an example and I thought that he was coming to the end of his comments without doing so. Examples would be useful to focus our minds on the issues.

John Hutton: There is an example of a regulatory body taking a decision about a medical practitioner who was distributing paedophile information. It decided not to suspend him from the register or to discipline him because he was doing that in his own time. That is the type of decision that justifies our proposal. I accept that clause 27 provides appeal rights, but there may be cases that give rise to concern about the rules of a regulatory body and would require and perhaps justify the exercise of such a power.
 I can tell from the expressions on Opposition Members' faces that my argument might not have been 100 per cent. successful, but we have thought carefully about the right way of taking the legislation forward and I hope that the record of our proceedings today will show the Government's intentions on clause 25(2) and our strong desire that the process should be conciliation, discussion and consultation in the first instance. That process will be reinforced by the amendments that we tabled today. In the last resort, the Committee and the House must decide whether the UK council should have the power to require a rule change to be submitted to the Privy Council.

Andrew Murrison: I should like to clarify one issue. The Minister cited a specific case, which sounded awful. Does he believe that the regulatory bodies might not give the right steer in some cases and that the council might be able to steer them in a more appropriate direction?
 I want to be clear about an important matter that has not yet been aired. The anecdotal experience of the General Medical Council, for example, is that the professionals on the council tend to be more censorious than the lay people serving alongside them. The Minister should not presume that the council will necessarily take a more censorious view than the regulatory bodies. That is important and he may wish to note the point.

John Hutton: I agree with the hon. Gentleman. I am not making any assumptions about how the council will approach the task. I am trying to place on the record the Government's intention in making the proposal: to give the council, as a last resort, the power to require a rule change by the regulatory body, subject to the final approval of the Privy Council. I am not making a judgment about the attitude of mind that lay or professional members will bring to bear. My strong hope is that there will be a clear consensus that that is the right thing to do before the council goes down that path. However, ultimately, they are matters for the
 council. If we were to deny the council even the opportunity to take that road if it thought that desirable to protect the public, we would disarm the council and remove a last-ditch power without which there would be a substantial risk that it would not achieve the ambitious objectives that we have set for it.

Evan Harris: I am not sure that I remember the case cited by the Minister, but let us suppose that the council was concerned about a similar case in which a regulatory body during its preliminary proceedings decided not to take the case forward. I understand that preliminary proceedings are not necessarily conducted in public because there may be unfounded allegations and people must be protected from libel. Does the Minister believe that as the council has a duty to protect the public and seeing this power, it might decide that it wants a regulatory body to take forward some of the cases that it had decided not to take forward? That would usurp the role of the regulatory bodies.

John Hutton: No; I do not. Nothing in the Bill would give the council that opportunity and it is certainly not what we expect it to do. I made it clear earlier that I do not expect the UK council to interfere in every fitness-to-practise decision taken by the regulatory bodies. The proposal is not designed for that and we do not envisage the council doing that. It might want to exercise its powers under clause 25(2), but, with respect to the hon. Gentleman, that is a dead end and it is not worth spending the Committee's time discussing it because I will not take the decisions. I have absolutely no intention of substituting my judgment for the eventual decision-making processes of the UK council. It is fruitless to hypothesise on that today.

John Baron: I take the Minister's point, but is he not worried that when the UK council can direct regulators on all matters pertaining to the Privy Council, that brings into doubt the independence of the regulatory bodies—something that the Kennedy report emphasised? It is a question of balance, but when, as a last resort, the UK council can direct the regulatory bodies, that must bring their independence into doubt. Does the Minister agree?

John Hutton: I understood that the hon. Gentleman was arguing for Parliament to be able to do that. I am not entirely sure that there is a distinction between who does it in terms of the independence of the regulatory bodies. Whether Parliament or the UK council has the reserve power, I do not believe that it fundamentally affects the independence of the regulatory bodies. We are determined to ensure that they remain professionally led, self-regulatory bodies. The fundamental question for the hon. Gentleman and, I suspect, his hon. Friends, is whether there should be someone with a reserve power to direct such a rule change, if it is clearly necessary and desirable to do so to protect the public. Our view is that accountability should properly be with the UK council, which in turn reports to Parliament. I accept that there is a wider debate about the role of Parliament and I am not precluding that; it is appropriate. However, the
 bottom line on which he and I hold different views is whether such a power should exist. I say yes, but I am not sure whether he also says yes. I say that the UK council should have that power, but I think that he says Parliament. Neither my argument nor his fundamentally detracts from the need to preserve independence.

Oliver Heald: The Minister keeps saying that this is a last ditch, reserve power. If that is so, why does he say that it is desirable instead of essential, vital or something that connotes an exceptional circumstance? That is not the type of language that one would expect for a reserve power. Can the Minister give an example of a reserve power's being given because it was desirable rather than vital, immediately necessary or essential?

John Hutton: No; I cannot give the hon. Gentleman an example, but there may be one. I do not have it at my fingertips, but I shall try to establish whether there is one. The word ''desirable'' may not have been used in such scenarios, but the language does not subtract from my argument and the way in which we envisage the clause working. It will be a serious step for the UK council to take and it can do so only if it is satisfied that it needs to take that action to protect the public interest. That is a high threshold, which does not constitute a generalised power to let rip across the rules of all the regulatory bodies. If I thought for a second that that was what the clause meant, I would amend it, but having taken advice I am perfectly satisfied that it is not so. I will be happy to entertain wider discussions with the hon. Member for Oxford, West and Abingdon, perhaps on Report.
 I suspect that if I keep going I shall start to repeat the arguments that we have rehearsed extensively over the past 45 minutes, and I do not want to detain the Committee with repetition. There is also the danger of hesitation, which I certainly want to avoid. We have been around the houses pretty comprehensively. I have tried to explain to the Committee the nature, origin and purpose of the clause, and I hope that my amendments, which make it clear that we expect a process of consultation with the regulatory body to precede any directions under clause 25(2), have reassured Opposition Members about the way in which we intend these powers to be exercised.

Oliver Heald: The Minister has set forth his case, but I cannot say that I am satisfied, although in respect of amendment No. 238 he convinced me that the duty of co-operation would be based on reasonableness. That is welcome, and fits with my view of how the duty would be construed.
 However, more important, the wording of clause 25(2) is not what one would expect with regard to the type of reserve power that the Minister claims that it provides. Saying 
 ''If the Council considers that it would be desirable'' 
is not saying, ''If it is vital in the public interest'', but something less than that. As we know, parliamentary draftsmen often use language that is as wide as possible 
 in order to give the Government or bodies such as the council the greatest amount of scope, and I heard what the Minister said about his intentions for this body. However, we must legislate on the basis of what the law will provide for. In this case, it will provide that if the council considered it to be 
''desirable . . . for the protection of members of the public''— 
another very wide expression—it would be able to direct the regulatory bodies. 
 Regulatory bodies such as the Royal Pharmaceutical Society of Great Britain believe that they have accountability to Parliament—indeed, they are rather insistent about it. That is why they suggest that the laying of a report before Parliament would be an appropriate measure. The Minister mentioned the interaction of the provisions with the report of the Bristol royal infirmary inquiry. The presidents of the regulatory bodies strongly support Professor Kennedy's comments in paragraph 75 on page 349 of the report: 
 ''The purpose of the system of regulation must be to assure the public of the competence of healthcare professionals and, when necessary, to protect them . . . An effective system of professional regulation . . . needs an independence from the professions and from government which allows it to act in the public interest.'' 
The point that is being made is that the new council is a non-ministerial Government Department and that, if it is to direct regulators in this way, the balance that Professor Kennedy is talking about is, arguably, lost. Although the Minister may speak about his constructive dialogue with the various regulators, the fact is that he has not satisfied them. Those people have his support and confidence. They include the presidents of the shadow Nursing and Midwifery Council and the shadow Health Professions Council. Those are people that he approves of and even, in many cases, had a hand in the appointment of. If those people say, ''Thank you very much for the constructive dialogue, but we are not satisfied,'' it is incumbent on the Committee to look again at what the Minister is saying. He is saying that this regulation applies only to extreme cases, but in our view that is not the wording of the statute. If the Minister agreed to take another look at the word ''desirable'' in clause 25(2) that would at least be something, although it would not go far enough for me. The Minister does not seem to be saying even that. He seems to be suggesting that it is not possible. 
 When the Minister was explaining the way in which the council would be able to effect the changes, he suggested that recommendations would be made, but it was not for the council to decide whether to change the rules. The Minister then said that, technically speaking, the Privy Council would take the decision on the basis of the advice of Ministers. It is incumbent on the Committee to look at the reality of the situation. Is the Minister seriously saying that he can think of any circumstances where the Council for the Regulation of Health Care Professionals would suggest or recommend that it was necessary to make changes to the rules? Is there any situation in which the Ministers would say, ''Oh no, we will not do that''? It does not 
 seem likely. The Minister may be able to cite plenty of examples in council practice and say that it happens all the time—that recommendations are made to the Privy Council and Ministers are always saying that they will not act on the recommendations, but will do something different—but I doubt it. 
 In Opposition Members' view and experience of the way that Governments work, if a body makes a recommendation, that is it. If the Minister feels that this is a good safeguard, it will help if he provides an example of an occasion when something similar has happened and Ministers have used discretion to change the recommendation of a regulatory body. 
 Let us consider the breadth of the organisations that are involved in supporting the proposal. The Royal Pharmaceutical Society of Great Britain speaks about its concern about 
''potentially sweeping powers of direction by the council proposed in clause 25. No real limits are specified on the use of these powers, the frequency of their exercise or the circumstances in which they may be deployed.'' 
That is the view of a highly respectable and well-thought-of body that is responsible in the field and that would wish to regulate its own profession effectively. That covers the pharmacists. 
 The Minister has sometimes criticised the British Medical Association, but I believe that he would accept that on such an issue it would try to find a sensible, practical, ethical solution that would meet the case. The BMA's view is that the provision to allow the council to overrule and control the General Medical Council's policy decisions is potentially subversive of the latter's role, and thus of the principle of professionally led regulation. It is going so far as to call what the Minister is doing subversive. That is pretty strong language from an organisation such as the BMA. 
 I have mentioned various presidents of organisations. I have personally met representatives of the General Medical Council, which is deeply uneasy about the power. I am asking the Minister whether there is any scope for him to take the matter back and consider whether he could be satisfied with the laying of a report before Parliament as the way forward. 
 I am reliably informed that experience shows that the use of the health service commissioner has been beneficial in each of the small number of cases in which it has been necessary. Given that the Minister recognises that we are talking about a small cadre of cases and that this is a recognised way of bringing an important issue in the health field to the attention of everyone, including us, why is Parliament being cut out of the loop? The Minister mentioned the Privy Council and the way in which it operates. I had not appreciated till then that, rather than Parliament making a decision on what will happen next after a report is laid before it—that is what the presidents of the various regulatory bodies and I are suggesting—by the route that the Minister suggests, the people who ultimately decide are Ministers. 
 That would probably not be an exercise of a very real discretion, but we return, as we have so often in the Bill, to a situation in which the Secretary of State is retaining powers and discretions, rather than releasing 
 them, even though he says that he wants to set up an independent body. It is another example of micro-management for which we regularly criticise the Secretary of State. Either he is committed to arm's-length regulation or he is not. Will the Minister think again?

Evan Harris: I listened with interest to that exchange. The hon. Gentleman made comments that I would have made, but I have a few others for the Minister to consider.
 It is important to deal with the Kennedy report. The Minister rightly realised that I had recognised that one cannot simply say that what is in the Kennedy report must be in. Otherwise the Government's policy on medical negligence litigation would be decided before the outcome of the Committee and a wide range of other recommendations in the report. I do not dispute, however, that the words that the Minister cited are in there, I think in recommendation 72. 
 The Minister will not, however, find in the report the recommendation that the overarching Council for the Regulation of Health Care Professionals should not have a majority of members appointed by the regulatory bodies. They will more easily realise, on the basis of their experience, the difficulties in seeking a balance between some of the issues at stake. 
 It is interesting, although to a certain extent unfortunate, that the Minister cited a paedophile case as an example, although I accept that he did so because I requested him to cite a case. That exemplified the difficulties that could exist. This might be a difficult point to make, but it is necessary. No one should be under any misapprehension that I am not in favour of protecting the public from health professionals, especially those with the most power to damage them. That often, but not only, means doctors. A balance, however, must be struck. There is, as I hope the Minister will accept, no perfect system of regulation that will always involve maximum fair play and consideration for the interests of both health professionals and the public. 
 I have an example, which might be more relevant than the one that the Minister gave. Arguments have been voiced that when the councils that regulate health professions publish their registers, they should give more details of the background of the health professionals—even including their home address—than those professionals would like. There must be a balance. It is not disputed that more information available to the public on a register, including details that professionals might not want to release because of their personal safety, will generally aid the protection of the public. If people are concerned about someone living at a certain address who might be using pseudonyms, for example, having that information available to the public will, at the margins, increase their protection. 
 There is, however, a counter-balance: the protection of the hundreds of thousands—if not millions when it is all added up—of health professionals whose interests should also be considered. That is not the primary purpose of the Council for the Regulation of Health Care Professionals, which aims to protect the 
 public. That is also the primary purpose of the councils that regulate the professions, through proper education and training standards, fitness to practise and recommendations on the ability to practise due to health. 
 Nevertheless, we as a Parliament must recognise that there are conflicting interests. It is quite possible that the CRHP will consider itself bound, under its functions, to deal with the protection of the public. That is right. Therefore, giving it power to direct another body means that that balance might not always happen. Certainly that is the case in the example that I gave. 
 Coming to the nub of the matter, the Minister defended the current language. I cannot remember the exact wording that he used to do that, but at the beginning of his remarks he used a negative term; I think that it was ''unlimited''. As the hon. Member for North-East Hertfordshire said, he used other terms, which I wrote down: ''extreme cases'', ''last resort'', ''last ditch'', ''ultimate last ditch'' and ''reserve powers''. None of those are in the Bill. The hon. Gentleman pointed out—a remark that I was going to make—that ''desirable'' is desirable, not essential or necessary, and that the council ''considers'' does not mean that it is convinced. I accept that that is not a parliamentary expression, but the council might consider something to be desirable on a balance of judgment, or on a majority decision. That is not a last resort, an ultimate last ditch or a reserve power but it is perfectly possible, and if the council does that, it might feel that it is following what the Bill asked it to do.

Oliver Heald: I have been listening carefully to the hon. Gentleman's remarks. Does he agree that another problem is that the test for the council is subjective? In certain circumstances of the sort that he described, one can envisage an emotive case that might strike the imagination of the public and the media. In such circumstances, the council should have a duty to be objective, not simply to have to ''consider'', which is a subjective test. We want that man on the Clapham omnibus in there, rooting for sensible changes.

Evan Harris: I agree with the hon. Gentleman's points before his last analogy. I am not sure that it is helpful to do such things by opinion poll, although I know that he was not quite saying that. But the point is well made.
 My point is that the words ''consider'' and ''desirable'', which could both imply ''on balance'', could be beefed up. I join the hon. Gentleman in asking the Minister to re-consider that, if not now, then at a later stage. In addition, where the clause refers to protecting members of the public, that could do with some qualification: arguably, with the word ''additional'' before 
''protection of members of the public''. 
Clearly, this is all about protection of members of the public, and if the ''last resort'' power is to be exercised, something significant must be gained from it.
 I am troubled by what might happen. I give an example from another area, which hon. Members might consider relevant. A teacher, who is a professional, has been convicted in the past of a sexual offence, but for something that we no longer consider a sexual offence because things have changed. But the view is taken that anyone who has been convicted of a sexual offence at any point, even if that is not now considered to be a sexual offence, is unsuitable to go near children. Such issues are difficult and not always clear-cut. The example that the Minister cited might lure us into a trap. I am not sure that I have the support of the hon. Member for West Chelmsford there, judging by the expression on his face. He asserts that from a sedentary position. 
 These are difficult issues that need to be dealt with on an individual basis in all circumstances. I am not sure how possible it will be for outside organisations to take rational and correct decisions without access to information about circumstances. Obtaining that access may contravene confidentiality and the privacy of the people concerned, so the citing of individual cases is not the Minister's best argument. He made a good defence of his position by stating that the amendment appears to change non-professional regulation from being carried out by an over-arching council to being carried out by Parliament directly, as opposed to indirectly through the Bill. 
 I have argued for avoiding the political control of the health professions. Simply transferring power explicitly to Parliament may not achieve that. The purpose of the amendment would be to ask the council, if it sees fit, to lay a special report before each House of Parliament. Such conflicts—I do not think that that is too strong a term given that the Minister thinks there could be a head-to-head impasse—should be brought to public and parliamentary attention. However, I doubt that that will be done. The mere retention of the power of direction will give a power imbalance to the relationship. When a body has the power of sanction, the body to which it is subject will often cave in or concede earlier than it would do normally because it does not want to go through the humiliation or public notice of the power of direction being used.

Oliver Heald: One reason why we have tabled the amendment is that bodies such as the GMC and the Chartered Society of Physiotherapy have already made considerable changes to the way in which they are organised as a result of the issues and criticisms that have been in the public domain. Such bodies are responsive to public criticism. What better way of showing the salience of criticism to the public than to lay a report before Parliament? That would publicly make that point.

Evan Harris: I agree with that. The Minister has a good point to make and makes it well, but one can see it coming. His amendments are welcome for their own sake and for the fact that they are a sign that the
 Government recognise the point at stake. I also hope that they are a sign that they will think further on the subject.
 The Minister said that he expected the power to be used rarely if at all and that that would be a sign that all was well. I am not sure that the lack of use of the power would be a sign that all was well. As I said, many regulatory bodies may not want the sanction—it will be viewed as a sanction—used against them and may be prepared, against their better judgment, to make the change without being directed to do so. That would not aid the purpose of openness or strengthen the belief in the idea that professional self-regulation should be open—we all share that belief, and it is contained in the Kennedy report. As the hon. Member for Westbury tellingly said, the experience is that health professionals are judged more fiercely by their peers, whose reputation they indirectly besmirch by poor behaviour, than they are by lay appointees. That is anecdotal, but accepted by those lay members whom I know. 
 I appeal to the Minister further to consider how to meet our concerns. The more he talks about extreme cases, the last resort and the last ditch, the less the Bill appears to reflect that.

Oliver Heald: I realise that I have had a good say, but I want to amplify one issue that arises from a point made by the hon. Member for Oxford, West and Abingdon concerning the way in which the various bodies dealing with health care professionals have been prepared to change their rules in order to respond to public concerns. I am looking at a note that I have been given by the Chartered Society of Physiotherapy, which states:
 ''The CSP is supportive of the ideas behind the establishment of the Council'' 
 such as 
''promoting the interests of patients . . . The CSP strongly supports the view that professionally led regulation for physiotherapists should continue.'' 
The CSP also states that 
''few disciplinary cases are instigated against physiotherapists. Furthermore, regulation of the physiotherapy profession has only recently been reviewed. The CSP—along with fellow members of the Allied Health Professions Forum (AHPF)—have been through two years of consultation and discussion leading to the agreement to establish a new Health Professions Council (HPC). This substantial reform of the State Registration system has come about as a direct result . . . We fear that the creation of the Council for the Regulation of Health Care Professionals will unscramble the agreements which have already been reached between the Government and the AHPF on . . . accountability. But it is not only regulation of the allied health professions which has been amended recently''. 
It goes on to point out that the same is true of nurses, midwives and health visitors: 
''the General Osteopaths Council and the General Chiropractic Council are still relatively young organisations (set up in the mid-1990s).'' 
Its concern is that 
''the Bill may weaken the concept of professional self-regulation.''
Having gone through all this effort to get modern rules that meet the requirements of the day, the council, not in a vital matter of interest to the public but if it considers it would be desirable to do so, can muck it up. 
 If the Minister is prepared to take back the relaxed language of clause 25(2) and turn it into the sort of reserve power to which he and the explanatory notes refer, or if he is prepared to examine a regime that fits the health commissioner, we would be grateful.

John Baron: It is plain that Opposition Members are concerned about the independence of the regulators, and we want to preserve that independence as far as possible. May I ask the Minister to address the issue in another way? Will he reassure us on the disappointing silence about the accountability of the UK council? To whom is it accountable and to whom should it report? That would help to allay my fears about the lack of a satisfactory limit on its powers. In preserving the independence of the regulators, the Government need to address that issue, in the hope that we can put to rest the concerns about these proposed ombudsman-style powers, which appear to be unlimited.

John Hutton: That is a second bite at the cherry. Those are old arguments that have been recycled. Given that everyone has had two or three goes, all that I can usefully add at this stage of the debate are a couple of observations. I have heard nothing today that makes me think that we should take the clause away and redesign it. We have had these arguments with the regulatory bodies, the points have been put to us and we have attempted to address them in the amendments that we have tabled. I made it clear at the beginning that it was evident that there was disagreement between the Government and the regulatory bodies about the need for the power. I regret that, but I cannot add a great deal more to the points that I have made because it is necessary for the council to have that power.
 I disagree with the argument that the hon. Member for Oxford, West and Abingdon has tried to advance that this reserve power—the ultimate last ditch—gives the council the right to roam. The clause is clear about when the power can be exercised, and I disagree with both him and the regulatory bodies in their interpretation of it. This is a case where there is a genuine disagreement on the clause's purpose and intention. It has been my purpose and intention in making these remarks to make my understanding of the clause clear not only to the Committee but to any subsequent forums, which has a significance that we should not underestimate. I have tried to reassure and I have tried to put the clause in context, but a disagreement remains. That is unfortunate, but it is not worth concealing. 
 All that I can say to the hon. Member for Billericay (Mr. Baron) is that he genuinely needs to have another look at the Bill because there is no confusion on accountability. He is incorrect about clause 26, which has not attracted any significant concerns. It is clear from the Bill that the UK council is to be accountable to Parliament, which is how it should be.
 The substantial area of disagreement concerns the amendment tabled by the hon. Member for North-East Hertfordshire on what would happen if there were to be a disagreement between a regulatory body and the UK council. He proposes that, in that case, a report be made to Parliament, which is where the matter would rest because there would be no possibility of its being taken any further. As the hon. Gentleman said, the amendment would completely remove any direction-making power from the UK council. We disagree on whether the UK council should have such a reserve power, and his amendment would kick the issue into touch, which would not be sensible. These disputes must be resolved within a proper framework. 
 The hon. Gentleman's argument on the use of the term ''desirable'' should be placed in the correct context. Whatever word we chose, it would be for the UK council to decide whether the threshold was met. It would be for the council to decide whether the word was ''necessary'', ''desirable'' or ''essential''. In approaching any decision, the council would have to act reasonably on the basis of evidence that would support its determination, which shows that there are sufficient safeguards in the system. This is genuinely a case where the hon. Gentleman and I take a different view. I am sorry that I have been unable to persuade him of our true intentions in relation to clause 25(2).

Oliver Heald: The Minister says that nothing would happen if a report were to be laid before Parliament, but that is not the health service commissioner's experience. I am told that it is widely accepted in the health community that that is a powerful tool. Is the Minister seriously suggesting that if a report was laid about one of the health professions' councils, the Council for the Regulation of Health Care Professionals would not act? Is he really saying that if a report were laid about the GMC, the council would not take that extremely seriously? When those bodies are subject to public criticism they take it seriously; why would they not do so if a report were laid before Parliament?

Alan Hurst: Order. The hon. Gentleman's intervention is too long.

John Hutton: I had rather forgotten the point.

Oliver Heald: There are obvious reactions.

John Hutton: The hon. Gentleman is not comparing like with like. His analogy is in relation to the arbitration of particular disputes and the behaviour of, for example, local authorities. In the context of our discussions, it is difficult to see what the end result would be of laying before Parliament a report that drew attention to a dispute between the UK council and the regulatory body because there would be no requirement to act. I cannot see how the process that the hon. Gentleman described would result in the rule change that the UK council is seeking. That, ultimately, is where we part company.
 There has been great play about the word ''desirable'' and the council coming to decisions that the hon. Gentleman would query were necessary or desirable to protect the public. However, we should not underestimate the important presence and the role on the UK council of the nine representatives of the regulatory bodies. Under the Bill, there will be 10 lay members, but in the context of the serious decisions that the council may make they will have the benefit and advice of the nine representatives of the regulatory bodies on the council. I am sure that they will have a positive influence on the council's decisions. 
 There is probably nothing more I can say about the amendment that has not been said two or three times. I am absolutely satisfied about the integrity of the provision and the need for it, supported by the amendments that we have tabled. I disagree with the regulatory bodies about the provision and I have heard nothing today to make me change my mind about the wording of the clause or the procedures outlined in the Bill.

Oliver Heald: Needless to say, we are not satisfied. The Minister will not even narrow the language. He is not prepared to take account of the fact that these views are strongly held by a wide range of bodies and groups in the health world. He is putting forward the view that he is being constructive in his two amendments, but they do not change the position. We are dug in and we do not agree, so I shall ask for a vote on amendment No. 186. However, following the Minister's assurance, I beg to ask leave to withdraw amendment No. 238.
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 186, in page 30, line 39, leave out subsection (2) and insert— 
 '(2)If, after consulting the regulatory body concerned, the Council concludes that— 
 (a) it is necessary for the protection of members of the public for a regulatory body to make or amend a rule (under any power the body has to do so); and 
 (b) the regulatory body has not made or amended the rule and will not do so the Council may if it thinks fit lay a special report before each House of Parliament.'.--[Mr. Heald.] 
 Question put, That the amendment be made:--
The Committee divided: Ayes 7, Noes 9.

Amendments made: No. 247, in page 31, line 5, leave out 'may' and insert 'shall'. 
 No. 248, in page 31, line 6, at end insert— 
 '( ) The regulations must, in particular, make provision requiring the Council to consult a regulatory body before giving it directions under subsection (2).'.--[Mr. Hutton.]

Oliver Heald: On a point of order, Mr. Hurst. If you will allow me, I want to ask the Minister to explain subsection (5). I do not seek a wider debate.
 Question proposed, That the clause, as amended, stand part of the Bill.

Oliver Heald: Clause 25(5) provides that a regulatory body is not to be taken to have failed to comply with directions merely because a court determines that the rules made pursuant to the directions have been construed in a different way from that intended when the rules were changed. Will the Minister explain, first, the ambit of that and the discretion within it, and how it would work in practice? Secondly, what is the sanction if the council asks a regulatory body to change the rules and the Privy Council agrees, but for some reason the change is inadequate, or the regulatory body refuses to change them? Do the Government have a sanction that can be imposed?

John Hutton: We have discussed the last point exhaustively on subsection (2) and, with respect to the hon. Gentleman, the issue covered by subsection (5) is clear. It covers a case in which the courts interpret the rule in a different way so that it does not have the effect originally intended. Without subsection (5), there would be a risk that the UK council or the regulatory body might be perceived to be in default under subsection (2).
 I prefaced my comments on subsection (2) by saying that I would be disappointed if the provision were ever used, but in the extremely serious situation in which it might be invoked but a regulatory body refused to make a proposed rule change or submit it to the Privy Council, the Bill would provide a legal procedure to require compliance with the rule change and require it to be submitted to the Privy Council. That is my understanding of the provision. There will be a follow-through, but that is the worst possible scenario that any of us could contemplate. 
 For some of the reasons suggested by the hon. Gentleman, who imagined the cathartic effect of a report before Parliament to which a regulatory body would almost invariably respond, it is unbelievable that a regulatory body would not comply with the proper procedures followed by the UK council and meet its requirement to submit a rule change to the Privy Council. I do not believe that the situation is likely to arise, but subsection (5) is a declaration to avoid the possibility of such a default situation arising because a court makes a different interpretation of a rule change following a direction under subsection (2).

Oliver Heald: So, the Minister is saying that the sanction is an injunction or a judicial review requiring the regulatory body to propose the rules to the Privy Council.

John Hutton: Yes, that is my understanding.
 Question put and agreed to. 
 Clause 25, as amended, ordered to stand part of the Bill.

Clause 26 - Complaints about regulatory bodies

Oliver Heald: I beg to move amendment No. 239, in page 31, line 15, leave out paragraph (a).

Alan Hurst: With this it will be convenient to take the following amendments: No. 240, in page 31, line 16, leave out 'must (or need not),' and insert 'may'.
 No. 241, in page 31, line 18, leave out paragraph (c). 
 No. 242, in page 31, line 19, leave out paragraph (d). 
 No. 243, in page 31, line 20, leave out paragraph (e). 
 No. 244, in page 31, line 27, leave out paragraph (i). 
 No. 245, in page 31, line 40, at end add— 
 '(5)The Council may adopt such procedure as it thinks fit to follow in investigating complaints.'.
 No. 246, in page 31, line 40, at end add— 
 '(6)The power to make regulations in this section shall be exercisable by statutory instrument. 
 (7) A statutory instrument containing regulations under this section shall not be made unless a draft has been laid and approved by a resolution of each House of Parliament.'.

Oliver Heald: Amendment No. 239 would delete clause 26(2)(a). The clause deals with complaints about regulatory bodies and provides that the Secretary of State can make regulations about the council's investigation of the complaints that it receives about the way in which a regulatory body has exercised any of its functions. As the Minister said, it is about enabling the council to investigate maladministration, not a means of overturning the decisions of fitness to practise committees.

Simon Burns: Does my hon. Friend agree that notwithstanding subsections (2) and (3), this is a classic example of where it would have been helpful to the Committee if the Government had prepared draft regulations in advance?

Oliver Heald: Yes. It is certainly my recollection that that is what we all thought was going to happen, but I have not had time to check the record to find the passage at the beginning of our proceedings in which the Minister promised to be thus helpful. It would be useful to know what the Government have in mind in respect of regulations.
 The various bodies that have written to us are keen that the council should be able to manage itself independently of the Government. It is disappointing that clause 26, with its plethora of matters that can be regulated, does not give the council more freedom to manage its own affairs. That is the theme that runs through the amendments.
 Clause 26(2)(a) says that regulations may deal with 
''who (or what description of person) is entitled to complain'' 
to the council about maladministration. Why cannot anyone make a complaint? I can understand why it might be desirable to specify the nature of the complaints that the council may consider, but why restrict the kinds of people who can make them?

Simon Burns: I could answer my hon. Friend's question by saying that perhaps he is fortunate enough not to have the odd constituent from hell who complains about anything and everything and to whom one would not want to give this sort of power.

Peter Atkinson: Some of us do not live in Essex.

Oliver Heald: That sedentary remark cannot have been made by one of my colleagues. As we know, it is the Secretary of State who is critical about Essex.
 Who does the Minister think will and will not be allowed to complain, and why does he want to restrict the ambit? 
 Subsection (2)(b) refers to 
''the nature of complaints which the Council must (or need not) investigate''. 
Amendment No. 240 would delete ''must (or need not)'' and insert ''may'', so that the phrase would read ''the nature of complaints which the Council may investigate''. Again, this is about prescription. Should the Minister be able, through the Secretary of State, to prescribe exactly which kinds of complaints must, or need not, be investigated? Why cannot the nature of the complaints that the council may investigate be set out? There may be a good reason why not, but we would like the Minister to explain. The amendment would ensure that the regulations described the nature of the complaints that the council may investigate, but would not require it or exclude categories of complaint. While I was drafting the amendment, I made the note, ''Let's trust the council.'' If the council were to act unreasonably, I think that judicial review would be available. 
 Amendment No. 241 would delete paragraph (2)(c), which refers to the 
''matters which are excluded from investigation''. 
Why be exclusive in that way about regulations? Why not simply state the nature of the complaints that the council can deal with, then leave it to do its job properly? 
 Amendment No. 242 would delete (2)(d), which refers to the 
''requirements to be complied with by a person who makes a complaint''. 
All Governments like forms and, no doubt, at the back of the draft regulations, the Minister will state the nature of the form to be filled out if one wants to make a complaint to the council. Why should it be like that? Why cannot people simply write in with a complaint and the council decide whether to take it up? Perhaps 
 the Minister has a reason why there must be a form or procedure for the requirement to be complied with, but he must justify that provision. 
 Amendment No. 243 would delete paragraph (e) and would mean that it is not for the Secretary of State to set out the procedure to be followed by the council when investigating complaints. The council could regulate its own procedure, and what would be wrong with that? 
 Amendment No. 244 would delete paragraph (i) which refers to 
''the making of payments to any persons in connection with investigations''. 
There may be a reason why a payment should be made. Perhaps the Minister thinks that the council would outsource its operations of investigation into maladministration. I asked the Minister this morning whether he had private investigators or opinion research in mind, and he said possibly a university. Will he explain more fully what the payments are? Are they simply payments to contractors, or does he think that it may be necessary, in the course of an investigation into maladministration, to pay money to a whistleblower. That is what happens in some criminal justice cases. Is he talking about information received or just contracting out functions? 
 Amendment No. 245 would allow the council to adopt its own procedure for investigating complaints; it would make specific provision for the council to do that. Amendment No. 246 refers to our old friend, the affirmative resolution procedure—the Minister will not be surprised to see it, but it is not a laughing matter. The regulations are important but we have not seen them. I am asking all sorts of questions about them but the way in which matters are to be dealt with is important. Many bodies, to which I have referred, want the council to be independent and to be able to run its own affairs. If that is not to be the case, and lots of restrictions are to be in place, the affirmative resolution procedure will allow us, the parliamentarians—not just the Government—to decide what should happen. That would be a proper guardian for the independence of the council.

Alan Hurst: I am of the view that the scope of the amendments allows a full debate on the clause. A stand part debate is therefore unlikely, and hon. Members will doubtless direct their minds accordingly.

Simon Burns: Obviously, I support the amendments, otherwise they would not be tabled in my name. However—[Interruption.] I do not intend in any way to breach collective responsibility, particularly with my Whip sitting behind me, but I should with hindsight caution my hon. Friend the Member for North-East Hertfordshire about amendment No. 239. I fully understand the purpose behind it, but on reflection we may have been a little too all-embracing in seeking to strike out subsection (2)(a). Our motivation was the sheer horror of what could happen if we adopted the provision, but I now think that it needs redrafting rather than abandoning. I suspect that we have all experienced the complainant from hell, and it is unfair to give carte blanche to that small group of individuals
 who take perverse pleasure in spending their lives complaining, and who are unable to accept a fact when it stares them in the face.
 I have a complainant from hell who has corresponded with me for 12 years. As your constituency is also in Essex, Mr. Hurst, you will understand that on first meeting me this complainant thought that I was wonderful. Sadly, I was unable to overrule the decision of a court or an appeal court. Times changed, and over the years matters that were my fault became my Government's fault. Fortunately, they are now the Labour Government's fault. On 2 May 1997, after that change of Government, her hopes were raised, as those of anyone who wanted to make complaints through such legislation would be. She thought, ''New Government, new Labour, new decisions.'' I again had to go through the lengthy process of writing to the Secretary of State for Health, the Home Secretary, the Lord Chancellor and the Department of Trade and Industry about her problem. Of course, as she was not as familiar with such procedures as I am, she was not to know that the same civil servants who drafted responses from Tory Ministers were drafting them again. 
 The Prime Minister's office, the Department of Health, the Department for Work and Pensions and, in particular, the Department of Trade and Industry will not reply to her correspondence. I, too, will no longer reply to her correspondence. The irony is that in the past three weeks, her complaint has ended up—new hope—on the desk of the Chairman of the Select Committee on Home Affairs. Sadly, I must tell the Committee that he, too, is no longer willing to reply to her correspondence and that that duty has now fallen on the Attorney-General. I can only assume that he will at some point follow suit. Here is a complainant from hell who, because she worked for a health authority, will not in any way, shape or form, accept the decisions of an employment tribunal or of the Employment Appeal Tribunal that found against her. 
 I caution my hon. Friends that the amendment might be too all-embracing. My complainant is a classic of her kind. One may say of her that a little education is worse than no education at all. A little reading of the Reader's Digest guide to the law is far worse than having no knowledge of the law. I would not wish on any council or regulatory body, nor even on this Government and their Departments, the vexatious and difficult complainants that one can face. Such people use up a disproportionate amount of time, energy and money with their vexatious complaints, and they will not take no for an answer. I find it extraordinary that this complainant has threatened to sue me. Why she did not sue the DTI, I do not know. That is the end to which some complainants will go.
 I hope that after further thought we will reserve our position on clause 26(2)(a) and perhaps pursue a redrafted version on Report.

Oliver Heald: I understand that we would not want to have frivolous, vexatious or unreasonable applications to the council, but surely that will be possible if one was simply to amend clause 26(2)(b). I am arguing that (b) should stay, although with ''may'' instead of ''must (or need not)''. That could then read ''(b) the nature of complaints which the Council may investigate''. The regulations would then make it clear that the council need not, if it did not wish to, investigate a frivolous, vexatious or unreasonable claim. Would that not cover it? Or does my hon. Friend feel that there should be a description of person, which fits in with his complainant.

Simon Burns: My hon. Friend is a lawyer, so he is logical, and he is a decent and intelligent person. He would make that sort of comment because he works from the basis of knowledge, intelligence and decency. Sadly, he has obviously not had a complainant from hell. If he had fully experienced the horror of it, he would be aware that Select Committees of this House cannot investigate individual complaints.
 Unfortunately, the hon. Member for Sunderland, South (Mr. Mullin), who is Chairman of the Select Committee on Home Affairs, has been bombarded by letters from this individual for the last three weeks. He explained in his first letter that the Home Affairs Committee, could not, by the rules laid down by the House of Commons, investigate individual complaints. To which the reply was, ''But my complaint is so important, and such an injustice has been perpetrated upon me by this House, through this person working in a health authority, that the Select Committee should investigate it.'' The woman cannot understand that there are rules for certain organisations. 
 My hon. Friend suggests tightening up paragraph (2)(b), but that would be to no avail in the case of someone who is so obsessive and seems to spend their life—because they have nothing better to do—reliving a seeming injustice, complaining and seeking redress. I am afraid that from a logical point of view my hon. Friend is absolutely right, but in reality with certain people in the real world it just would not work. That is why I think that we will reluctantly have to look again at amendment No. 239. We really have to get it right, because it would be irresponsible of us to inflict on this council complainants of the sort that I and many Ministers and Departments, and civil servants, over the last 12 years, have had to put up with. 
Debate adjourned.— [Jim Fitzpatrick.] 
 Adjourned accordingly at one minute to Seven o'clock till Thursday13 December at half-past Nine o'clock.